NEWS

April 17, 2018

ROBERT B. SPAWN reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division.

A recent New Jersey case involved a Plaintiff who went into cardiac arrest during an endoscopic procedure in which Defendants served as the anesthesiologists. Because Defendants were not able to effectively restore Plaintiff’s heart rate for eleven minutes, Plaintiff alleged that Defendants were negligent, and that this negligence caused serious and permanent cognitive damage. The lower court denied Plaintiff’s motion for a re-trial in the aftermath of a jury trial, and Plaintiff appealed.

First, Plaintiff argued that the lower court erred in barring his testimony at trial. Plaintiff’s counsel had requested that Plaintiff testify concerning his inability to perceive and recall basic information (e.g., his age) in an effort to demonstrate his cognitive deficits allegedly resulting from the procedure. The lower court held that this testimony’s prejudice to Defendants outweighed its probative value. The Appellate Division, however, disagreed and reasoned that the testimony, although slightly prejudicial to Defendants, would have had significant probative value in the jury’s determination, especially in light of the numerous witnesses who had testified about Plaintiff’s condition. The Court also noted that any prejudice to Defendants caused by this testimony could have easily been refuted by defense counsel’s cross-examination of Plaintiff’s witnesses. Accordingly, the Appellate Division concluded that the lower court judge abused his discretion in refusing to allow Plaintiff to testify.

Second, Plaintiff argued that the lower court judge erred in failing to accept a proposed jury charge explaining why Plaintiff was barred from testifying at trial. Plaintiff’s proposed charge informed the jury that, while the judge had found Plaintiff competent to testify, the judge had also determined that Plaintiff lacked capacity to reasonably answer questions during his testimony. This charge was intended to detail the precise circumstances that prevented Plaintiff from testifying so the jury would not have any questions regarding same. By contrast, the judge’s jury charge did not explain why Plaintiff did not testify. The Appellate Division thus held that instructing the jury on the judge’s less detailed charge was prejudicial error, as the jury was left to ponder why Plaintiff was not testifying.

For these reasons, the Appellate Division reversed the denial of Plaintiff’s motion and remanded the matter back to the lower court for a new trial.

Please contact Robert B. Spawn if you have any questions or need assistance in connection with this subject.